Contents # 1/2017

JUSTICE IN THE MODERN WORLD  Pdf 16

A. I. KOVLER, A. M. BELYALOVA, Yu. E. IBRAGIMOVA,  A. I. SIDORENKO, V. S. CHERENKOVA

A. I. KOVLER, head of the Center of the legal issues of integration and international cooperation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, honored lawyer of the Russian Federation
A. M. BELYALOVA, senior specialist of the Department of scientific support of the Secretariat of Russian delegation in European Commission for Democracy through Law (the Venice Commission) of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
Yu. E. IBRAGIMOVA, junior research fellow of the Department of implementation of judicial decisions into the Russian Legislation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
A. I. SIDORENKO, senior research fellow of the Department of implementation of judicial decisions into the Russian Legislation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
V. S. CHERENKOVA, junior research fellow of the Department of scientific support of the Secretariat of Russian delegation in European Commission for Democracy through Law (the Venice Commission) of the Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: kovler@izak.ru; venkom@izak.ru

DOI: 10.12737/24486

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INTERNATIONAL LEGAL TERMS THE INDEPENDENCE OF THE JUDICIARY AND TRANSITOLOGICAL FEATURES OF CONSTITUTIONAL DEVELOPMENT IN THIS AREA  Pdf 16

G. G. HARUTYUNYAN

the President of the Constitutional Court of the Republic of Armenia, doctor of legal sciences, professor
10, Bagramyan ave., Yerevan, Armenia, 0019
E-mail: armlaw@concourt.am

In the context of the activities of the European Commission for Democracy through Law (Venice Commission) the article presents a brief analysis of the constitutional provisions enshrining the guarantee of the independence of the judiciary, their compliance with the international standards in this field. Also the author has made a comparative analysis of the rule of law index, in the result, he has concluded that the countries of Eastern Europe in average the conditions and independence of the judiciary are unsatisfactory. Using the amendments to the Constitution of Armenia in 2015, the author provides examples of new constitutional solutions to overcome the current situation and existing problems in the process of formation and functioning of an independent judiciary. During the constitutional reform of 2015 were reformulated the fundamental rights to address complains to the international bodies. The rules on election and appointment of judges were changed, for example the delay of the exercise of the office of president of courts was modified. The High Judges Council was established having as its main purpose the protection of judges’ independence. Some changes were introduced to the judicial procedure having as a main goal its democratization.

Keywords: justice, Constitution, Venice Commission, judiciary independence, rule of law index, Republic of Armenia, constitutional amendments, efficiency of the justice.

DOI: 10.12737/24281

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CRITERION OF A FAIR TRAIL: INTERNATIONAL STANDARDS AND ITS IMPLEMENTATION BY NATIONAL JUSTICE  Pdf 16

A. I. KOVLER

head of the Center of the legal issues of integration and international cooperation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor, honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: kovler@izak.ru

International standards of a fair trial were created by centuries of judicial practice and are stipulated by the international and regional pacts and conventions, as well as by the reports and opinions of the Venice Commission. The case-law of the European Court of Human Rights concerning complains against violations of a right to a fair trial are also of a great importance from the point of view of an implementation by the national courts of the European Convention on Human Rights. The European Convention on Human Rights in its Article 6 “Right to a fair trial” - a “core” article of the Convention, provides such standards of a fair trial as a public hearing within a reasonable time by an independent and impartial court established by law, judgment must be pronounced publicly. Besides these standards the Convention suggests some procedural guarantees of a fair trial everyone must be informed promptly of the nature of an accusation against him, he has a right to defend himself of though legal assistance ant to examine witnesses, etc. The case-law of the European Court on Human Rights shows that practically all European countries, including Russia, have problems with the implementation of the Convention’s standards into the practice of justice. That is why the Article 6 remains the most “suggested” complain of the applicants.

DOI: 10.12737/24282

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THE CONSTITUTIONAL COURT IN THE SYSTEM OF JURISDICTIONAL BODIES (OF GODLY SINS OF CONSTITUTIONAL JUSTICE)  Pdf 16

N. S. BONDAR

judge of the Constitutional Court of the Russian Federation, doctor of legal sciences, professor, honored scientist of the Russian Federation, honored lawyer of the Russian Federation
1, Senatskaya sq., St. Petersburg, Russia, 190000
E-mail: ksrf@ksrf.ru

Analyzing the place and role of the Constitutional Court of the Russian Federation in the institutional system of national and supranational jurisdictions, there is the author’s approach to the study of this institution in particular through the prism of the so-called constitutional paradoxes (“godly sins”) of the constitutional justice. Among them: legal involvement of the Constitutional Court of the Russian Federation in the resolution of important constitutional questions at the intersection of law and policy; entering into the system of justice and at the same time transcending it as the trial of the government and the law; the legal force of the final acts, which are not laws, can be above the law; the stability of the Constitution in conjunction with socio-historical dynamism, the problems of guaranteeing its supremacy in collaboration with supranational jurisdiction, the need to ensure by the constitutional justice of the Constitutions’ supremacy in collaboration with the international-legal regulation and supranational jurisdictional practices. The article explains that the status characteristics of the national organs of constitutional justice, manifested in the contemporary world order and in relations with bodies of international jurisdiction, have a constitutional good nature and serve as a confirmation of the special role of these bodies in the justice system in modern constitutional democracies.

Keywords: Constitution, Constitutional Court, justice, separation of powers, human rights, national and supranational jurisdiction.

DOI: 10.12737/24283

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ROLE OF JUDGES’ DIALOG IN PROVING OF THE RULE OF LAW  Pdf 16

Kh. I. F. ogly HAJIYEV

judge of the European Court of Human Rights, doctor of legal sciences, professor
Baku, Azerbaijan
E-mail: venkom@izak.ru

The article discusses the problem of interpretation of the provisions of the European Convention on human rights by European Court of Human Rights, as well as the development of dialogue between judges of different levels, aimed at the formation of the European “common” law. Placing at the forefront the principle of the rule of law as the basis for all the guarantees of human rights, the author substantiates the necessity of the interaction of various levels courts, based on mutual respect, dialogue of the courts, what will undoubtedly lead to the enrichment of the legal system, searching for the most complete and effective regulation of social relations. According to the author, the effectiveness of interaction between courts is based primarily on a shared understanding of the importance of the activities of ECtHR judges in the development of common approaches to the protection of human rights and consolidation of the efforts in search of forming a common legal space. Using the example of some cases considered by the ECtHR, the article illustrated the options of interaction of the Court with national courts. The article reveals some problematic issues in the activity of the ECtHR, in particular the lack of involvement the principle of harmonious interpretation.

Keywords: European Convention on human rights, European Court of Human Rights, justice, rule of law, national courts, interpretation, dialogue, enforcement discretion.

DOI: 10.12737/24284

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INTEGRATION AND NATIONAL JUSTICE IN THE EURASIAN ECONOMIC UNION  Pdf 16

A. A. FEDORTSOV

chairman of the Court of the Eurasian Economic Union, honored lawyer of the Republic of Belarus
5, Kirov st., Minsk, the Republic of Belarus, 220006
E-mail: info@courteurasian.org

Integration processes in Eurasia in recent time are developing rapidly, cooperation between countries is becoming more closer, including in the framework of the Eurasian Economic Union. In the article the author discloses the various aspects of the activities of the Court of the Eurasian Economic Union. Due to the fact that the Eurasian Economic Union (EEU) is only two years old, and a practice of it is not very extensive. And in this context the author draws the analogy with various international courts, including the Court of the European Union, the issues of the functioning - can the existing expertise be applied in the Eurasian Economic Union or not? The author makes a conclusion that currently there is a duality of dimensions of justice in the national courts and international judicial organ in the frame of the judicial system of the EEU, and such duality must be overcome to implement the Union’s common justice.

Keywords: justice, Eurasian Economic Union, court, national justice, international judicial organ, international treaty, Customs Union, direct interaction of the courts.

DOI: 10.12737/24285

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ON THE INTERACTION OF LAW ENFORCEMENT BODIES AND JUDICIAL COMMUNITY  Pdf 16

О. А. STEPANOV

chief research fellow of the Department of criminal and criminal procedural law; judicial system of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: o_stepanov@hotbox.ru

The article discusses the possible forms of interaction between law enforcement bodies and judicial community. There are also proposals for improvement of the qualification collegiums of judges, for increasing of the public confidence in the judicial branch of power in current conditions. The current law allows bringing judges to disciplinary responsibility for the imposition of clearly illegal judicial act, if the illegality is confirmed by the highest instance, and the conclusion about the apparent illegality is made by the qualification collegium of judges. This approach does not contradict the legal approach on the principle of non-involvement of the judge to the responsibility for rendering its judgment - the judge shall be brought to disciplinary responsibility not for the opinion expressed in the judicial act, but for actions that violate the requirements of the Law on the status of judges. The author suggests the new way for the composition of the qualification collegiums of judges of all levels, which implies to guarantee the objectivity and impartiality of their work by reducing of the proportion of judges in the collegium to 51% and to replace remaining 49% of members by the members of the public society (25%) appointed by representative bodies of the relevant level, and the remaining (24%) - by the independent prosecutors appointed by the President of Russia. According to the author, creation of such institution of “independent prosecutors” in Russia will provide more effective implementation of the principle of “three keys”, when the appointment of the members of the qualification collegiums of judges will be involved popularly elected President, Chairman of the Supreme Court of the Russian Federation, the Federation Council (the legislative assemblies of the constituent entities).

Keywords: protection of the rights and freedoms of the individual, disciplinary responsibility of judges, qualification collegiums of judges, cooperation between the law enforcement bodies and judicial community, institution of “independent prosecutors”, foreign experience.

DOI: 10.12737/24286

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THE NORDIC LEGAL FAMILY AND UNIFICATION OF LAWS (in English)  Pdf 16

Ole HASSELBALCH

doctor of law, professor (em.) at the Aarhus University (the Kingdom of Denmark), reader at Stockholm University
Nordre Ringgade 1, 8000 Aarhus C
E-mail: ole.hasselbalch@mail.dk

In the presented article the author analyses the particular and typical legal characteristics of the so-called Nordic Legal Family, which enable it to be rather specific and to be on the contrary to the Romano-Germanic legal family and the Anglo-Saxon legal families of Europe. The author emphasizes that these characteristics of Nordic legal family serve the cause of the harmonisation of the laws and even legal systems of the States of Northern Europe included in this legal family. The author examines the ethnic, historical and cultural origins, the foundations of the origin of this legal family, and based on them factors that contribute to the harmonization of their laws. The specifics of the formation of legal systems of the States of this region were shown in present article. The author describes the traditional North-European countries forms and methods of legal unification through meetings and consultations of their representatives, through their joint activities, their activities in the Northern Council which is an international body of inter-parliamentary cooperation, and the Council of Ministers of Nordic Council member states whish is responsible for intergovernmental cooperation. There also were presented the examples of positive results of this unification. However, the author correlates the operation of the Nordic legal family and the negative influence of the European law.

Keywords: law, legislation, unification, legal family, legal characteristics, background, experience, comparative, lawyers.

DOI: 10.12737/24287

 

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SOCIAL RIGHTS IN THE CONSTITUTIONS OF THE XXI CENTURY  Pdf 16

A. V. ALEKSANDROVA

associate professor of the Penza State University, candidate of legal sciences, associate professor
40, Krasnaya st., Penza, Russia, 440026
E-mail: ann-alexandrova@mail.ru

The article analyses norms on social rights of citizens, which constitutions of foreign counties contain and which were accepted in the present century. The author considers these norms of constitution as an important part of modern social law. The author introduces some examples and studies some constitutional indicators of a social state (social function of private property, income leveling, social equity principle), and personal rights in field of labour, social security, education, ecology, etc. The author draw following conclusions: some constitutional social rights reflect modern global problems (e.g. the free access to potable water and energy resources, the food security); an importance of state guarantees of education, health protection, social security of exposed sections of the population grow in conditions of the post-industrial society.

Keywords: constitution, social rights, indicators of a social state, social security, exposed sections of the population.

DOI: 10.12737/24295

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THE FOUNDATIONS OF THE CONSTITUTIONAL STATUS OF THE ISLANDS OF SAINT HELENA, ASCENSION, TRISTAN DA CUNHA AS AN OVERSEAS TERRITORY OF THE UK  Pdf 16

I. V. IRKHIN

associate professor of the Kuban State University, candidate of legal sciences
149, Stavropolskaya st., Krasnodar, Russia, 350040
E-mail: dissertacia@yandex.ru

This article gives general characteristic of the constitutional status of the overseas territories of the UK, show the directions of cooperation between the UK and the overseas territories. The author has made some conclusions on the flexibility and quality differentiation of constitutional and legal approaches of the organization of the political-territorial structure of the UK. The political and territorial relations between the UK and relevant overseas territory were proposed to classify as unitary with the elements of federalism. The author has confirmed the actuality of the question of the constitutional concretization of the competences of the Governor of St. Helena, Ascension Island, Tristan da Cunha. In order to provide a more complete account of interests of population of the overseas territories was raised the problem of the lack of constitutional provisions on the appointment of the Administrators on Ascension Island and Tristan da Cunha with the opinion formed by elected Councils. The position on the advisability of the constitutional consolidation of the form and order of consideration of the interests of the Islands of Saint Helena, Ascension Island and Tristan da Cunha in the government of the Kingdom, as well as when considering the UK Parliament of legislative acts on issues relating to the whole Commonwealth was argued.

Keywords: UK, overseas territory, Saint Helena, Ascension Island, Tristan da Cunha, Constitution, public authorities, federalism, partnership, Governor, Administrator, Council.

DOI: 10.12737/24296

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ADMINISTRATIVE-LAW MODELS ОF GUN USE IN THE RUSSIAN FEDERATION AND FOREIGN COUNTRIES  Pdf 16

S. M. ZYRYANOV

leading research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: adm1@izak.ru

It is considered that in foreign countries the trafficking of weapons is regulated by the state in a minimal volume and it leads to numerous victims in the result of the uncontrolled use of weapons. In fact, the legislation of all countries establishes the requirements for weapons that can be used as a civilian weapon of self-defense, to citizens who can obtain permission to use self-defense weapons, to the procedure for obtaining permits for storage or storage and carrying of weapons, as well as the storage and carrying of weapons of self-defense. These provisions, according to the author, considered together, define a specific administrative-legal model of arms trafficking. The article presents the classification and identifies three standard models of weapons trafficking, depending on the recognition or non-recognition of government right of citizens to armed self-defense. In addition, the author points to a number of objective circumstances, ignored by the legislator in many countries in the choice of a particular model of the turnover of civilian weapons, and comes to the conclusion that the choice of the administrative-legal model of the circulation of civilian weapons rests with the erroneous order to affect the illegal trafficking of arms on the relationship beyond the subject of administrative-legal regulation of the turnover of civilian weapons.

Keywords: administrative-law model, weapon, self-defense gun, administrative law regime.

DOI: 10.12737/24297

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CONSTITUTIONAL REFORM IN THE XXI CENTURY: DEVELOPMENT AND TRANSFORMATION OF LEGAL PRINCIPLES OF TAXATION  Pdf 16

O. O. ZHURAVLEVA

leading research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: ozhura@gmail.com

In the beginning of the XXI century constitutions of countries changed frequently. Tax matter was involved in the search of the balance between private and public interests. The taxation models vested in national constitutional acts were transformed. This article deals with the main tendencies in the constitutional design of different countries in the framework of tax matter. Author investigates the provisions connected with taxation, which were enacted in new constitutions in XXI century. Some traditional rules of different legislations’ branches (tax, budget, criminal law) are now becoming embodied in the new constitutional acts. In the explored constitutions the main tendencies, which were revealed, are the constitutionalisation of national tax law and the formation of the new tax principles. The wide variety of the tax regulation on the constitutional level was revealed. It is concluded that the approaches to the realization of the main taxation principles in new constitutional acts were transformed in XXI century.

Keywords: principles, tax, equality, fairness, certainty, constitutional reform, constitutionalisation of tax law, constitutional design, legal system, constitutions of XXI century.

DOI: 10.12737/24298

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ON THE BURDEN OF PROVING GUILT IN A CASE OF ADMINISTRATIVE VIOLATION  Pdf 16

S. G. VASILEVICH

associate professor of the Belarusian State University
4, Nezavisimosti ave., Minsk, Republic of Belarus, 220030
E-mail: Gregory_1@tut.by

The article analyzes the relations in the sphere of evidence and proof of guilt in respect of which the administrative process is underway. Attention is paid to the collection of evidences from sources provided by law, the assessment of the evidences collected, questions of application of the presumption of innocence and the presumption of guilt. One of the most important aspects that require an answer is: who bears the burden of proof. Presumption is an assumption recognized as valid until the contrary is proved. Guilt is a mandatory feature of any administrative offense. We analyze the current legislation and practice, including the context of a person’s right not to incriminate themselves, relatives and members of his family. The situation associated with the violation of the rules of stop rules and parking of the vehicle, as well as other traffic rules is considered. Based on the need to balance public and private interests, it is underlined that the law enforcement agencies’ authorized officers have all legal grounds, taken into consideration the principle of unavoidability of punishment (penalty), to hold a vehicle owner administratively liable if the owner does not provide with the information about whom he (she) has passed his (her) car that turned out to be parked in the wrong place. Attention is paid to the position of the Constitutional Court expressed in one of its definitions referring to the presumption of innocence. The Constitutional Court noted that not only the indicated presumption is important, but also the principle of inevitability of punishment, protection of the foundations of the constitutional system, morality, health, rights and freedoms of others, national defense and state security are necessary. Suggestions have been made for further improvement of law enforcement.

Keywords: presumption of innocence, presumption of guilt, the burden of proof, evidence, collecting evidence, assessment of evidence.

DOI: 10.12737/24299

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PREVENTION AND RELIEF OF EMERGENCY CONSEQUENCES IN CANADA: LEGAL AND ORGANIZATIONAL ASPECTS  Pdf 16

I. G. TIMOSHENKO

leading research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: foreign2@izak.ru

В статье рассматриваются правовые и организационные аспекты предупреждения и ликвидации чрезвычайных ситуаций в Канаде. На основе анализа федерального законодательства проводится исследование особенностей правового регулирования чрезвычайной ситуации, анализируются виды чрезвычайной ситуации, закрепленные в федеральном Законе 1988 г. о чрезвычайных ситуациях, оценивается значение классификации чрезвычайных ситуаций для практической деятельности органов, компетентных проводить конкретные организационно-правовые мероприятия по предупреждению и ликвидации чрезвычайных ситуаций того или иного вида. Анализируются вопросы разграничения полномочий федеральных и провинциальных органов государственной власти Канады в отношении предметов федерального ведения и ведения провинций. Исследуется система органов общей и специальной компетенции, ответственных за предотвращение и преодоление последствий чрезвычайных ситуаций на федеральном уровне. В частности, рассмотрены полномочия правительства и генерал-губернатора, основные направления деятельности Департамента публичной безопасности и готовности к чрезвычайным ситуациям, а также подведомственных ему исполнительных агентств. Освещаются общие подходы к системе управления в условиях чрезвычайной ситуации, отраженные в Руководстве Канады по управлению в чрезвычайных ситуациях, основные элементы этой системы. Уделяется внимание общим принципам законодательного регулирования и практики борьбы с чрезвычайными ситуациями в провинциях Канады.

Keywords: emergency situation, types of emergency situation, federal regulation, Governor General, legislative acts of provinces, prevention, organizational matters, planning, programs, liability measures.

DOI: 10.12737/24300

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THE LEGAL NATURE OF THE QUALIFICATION EXAMINATION FOR OBTAINING THE STATUS OF UKRAINIAN LAWYER  Pdf 16

V. V. ZABOROVSKIY

associate professor of civil law chair of the Uzhgorod National University, candidate of legal sciences, associate professor
3, Narodnaya sq., Uzhgorod, Ukraine, 88000
E-mail: zaborovskyviktor@rambler.ru

In this paper, the legal nature of the qualifying examination as a condition for obtaining the status of Ukrainian lawyer is analysed. The article reveals the theoretical approaches and norms both the Ukrainian legislation and the legislation of foreign countries (France, Germany), and regulatory issues of the lawyer qualification examination. The article questiones the usefulness of the qualification examination in accordance with the procedure which it has under the Ukrainian legislation currently, including working out the exam until the person obtains necessary internship. The article substantiates the position that the Ukrainian legislator should change their attitude towards the first (“introductory”) qualifying exam of the Bar (until the person obtains the necessary internship). It is pointed out that the purpose of this test is to check not only professional skills of the applicant to receive the status of the lawyer (but only to determin the level of his (her) general theoretical knowledge both in the field of law and bases of advocacy), but also its moral and ethical level (in particular, passing the psychological test). The article substantiates the position that the applicant for the status of Ukrainian lawyer shall also be the entrance and the second «prom» qualifying examination, but after obtaining the necessary internship. The paper notes that the purpose of such examination must be to test readiness of a person to practice law by him (herself).

Keywords: lawyer, advocacy, the acquisition of the status of lawyer, lawyer qualifying exam.

DOI: 10.12737/24301

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THE DEVELOPMENT OF THE REGULATION OF REPO TRANSACTIONS AND THEIR SIGNIFICANCE IN THE DEVELOPMENT OF MARKET ECONOMY IN UZBEKISTAN  Pdf 16

M. Е. BOBOZHONOV

applicant of Tashkent State Law University
6, Sayilgokh st., Tashkent, Uzbekistan, 100047
E-mail: mbobojonov@yahoo.com

The present article examines the formation of the financial market of Uzbekistan. The development of a market economy helped to raise the profile and priority of civil relations. As one of the means of civil relations the repo transaction is a new and rapidly developing form of transactions in Uzbekistan. Author considers the development of the legal bases of the securities market and its individual institutions, in particular the Institute of repo transactions. Based on the analysis, the author highlights the specificity of repo transactions’ legal regulation in a market economy. The author concludes that the repo market has a positive trend, and gradually expands in the country’s financial market. Year after year, the importance of this transaction increases, and it is possible to determine that by the percentage of the amounts of total repo transactions on stock exchanges. The legal framework, governing the transactions in this category at the legislative level is sufficiently established.

Keywords: stock market, securities, market securities, repo transactions, regulations, lending.

DOI: 10.12737/24302

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THE CONFLICT REGULATION IN THE IDENTIFICATION OF THE AUTHOR IN CROSS-BORDER RELATIONS  Pdf 16

O. V. LUTKOVA

associate professor of private international law chair of the Kutafin Moscow State Law University, candidate of legal sciences
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123995
E-mail: ovlutkova@mail.ru

The article deals with national approaches to the identification of the author: on the basis of “lex origins” in the framework of intellectual Statute (Portugal, Romania) or contrary to the Intellectual statute (Russia, USA), on the basis of “lex loci protectionis” (Austria, Germany, Belgium). The conclusion is drawn in respect of the use of collision formula «lex origins» to determine the author of the work as the most appropriate mechanism which leads to the solution of the problem of the initial authorship according to a single law, no matter which country’s court considered the dispute. The attention is paid to inaccuracies in the wording of the scope and to the connecting factor of the domestic conflict norm which selects the applicable law to govern the identification of authorship. In order to improve the domestic conflict regulation it is advisable to formulate in the Civil Code the general rule of conflict of laws that is applicable to identify the author / initial owner of the creation removing the indication that restricts the volume of rules in the Article 1256 p. 3 of the Russian Civil Code, adding to this norm the subsidiary connecting factor “lex loci protectionis” and retaining the general connecting factor “lex origins”. It is also proposed to include into the Russian Civil Code’s Article 1256 a special conflict of laws rule for determining the applicable law to identify the author / initial owner which would correlate with the principle of freedom of contract and would be based on the general connecting factor - “law of party autonomy” (lex voluntatis), and subsidiary connecting factor - “contract law of the country” (lex contractus) for the work for hire which has been created under the contract.

Keywords: the international copyright, the cross-border relations, the conflict regulation, lex origins, lex loci protectionis, the identification of the author, the initial owner, the applicable law.

DOI: 10.12737/24303

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COURT PRACTICE AS A PARAMOUNT LEGISLATION DEVELOPMENT FACTOR: RUSSIAN AND FOREIGN LAW EXPERIENCE  Pdf 16

S. A. SINITSYN

leading research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: synss@mail.ru

A recent discernible trend towards complication of legislative regulation of public relations and an active role of law-enforcement activity in interpretation of law under conditions of harmonization of the European law dictate the need of consideration of key issues of interrelation of court practice and the legislation not only on the basis of national law, but also taking into account a rich foreign experience. Both the European and the national legal doctrine treat court practice as an independent object of legal research. The issues of judicial rule-making are solved differently in doctrinal researches of various countries, which is caused both by legal traditions of specific system of justice development, and current development needs specific national systems of law. Identification of legal forms of interrelation of law-enforcement practice and the legislation makes it possible to formulate and understand, from the methodology point of view, significant principles and mechanisms of their interaction to determine efficient legal models of development of the legislation and the law-enforcement activity within a legal framework.

Keywords: legislature, law enforcement practice, court practice in the system of private law, legislation development factors.

DOI: 10.12737/24304

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BENEFICIAL OWNERSHIP AND TRUST: EXPERIENCE OF CIVIL LAW COUNTRIES  Pdf 16

A. V. MAZAEVA

postgraduate of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: a.mazaeva7992@gmail.com

The increasing complexity and internationalization of economic processes, escalation of risks of solo asset management, constant change of market conditions, emergence of new means of earning income from property demand from the owner of any valuable assets to find a professional who can effectively manage an estate. Lack of clearness in legislative regulation in the Russian Federation stimulates the title holders to use international law institutes such as trust, rather than national asset management. The author underlines unrecoverable problems occurring during attempts of implementation of trusts into the legislation of European countries, gives examples of alternative institutes of an asset management. The article describes problems occurring because of trust implementation into civil law. The author makes the comparative analysis of the “contract” model and the “trust” model of asset management and gives several examples of successful application of trust-like institutions in civil law countries, such as: Institution of precede and subsequent successors (Vorerbe and Nacherbe); Dauertestamentsvollstrecker and Treuhand in the law of succession and corporate law of Germany; la fiducie in civil law of France. The article contains a brief overview of the Hague Convention on the Law Applicable to Trusts and on their Recognition 1985 as an example of harmonization of common understanding of trust among European countries and the resolution of the problem of legal qualification of trust relations by civil courts.

Keywords: asset management, trust, Treuhand, la fiducie, the Hague Convention on the Law Applicable to Trusts and on their Recognition 1985.

DOI: 10.12737/24305

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INDEPENDENT INVESTIGATIVE BODIES ON THE TERRITORY OF THE FORMER SOVIET UNION: COMPARATIVE STUDY  Pdf 16

L. G. BERLYAVSKY, V. A. RASCHETOV

L. G. BERLYAVSKY, professor of constitutional and municipal law chair of the Rostov State University of Economics, candidate of legal sciences, doctor of historical sciences
159/78, Baturinskaya st., Rostov-on-Don, Russia, 344016
E-mail: berlg@yandex.ru

V. A. RASCHETOV, head of laboratory of the Institute of Advanced Training of the Academy of the Investigative Committee of the Russian Federation
1a, Mylnikov st., Rostov-on-Don, Russia, 344016
E-mail: vraschetov@gmail.com

An article describes reasons of formation on the Territory of the Former Soviet Union of independent preliminary investigation bodies in the form of investigative committees. A comparative research was carried out on the ground of investigative committees in Belarus, the Pridnestrovian Moldavian Republic, the Russian Federation and the Republic of Armenia, their purposes, organization and functional features, determined by the specifics of national criminal justice systems. Additionally their similarities and differences were describes. The author defines the place of such bodies in countries’ state mechanism and the their possible development trends. Historically along with other measures of protection of the the rights and freedoms of a person exist criminal-legal regulation of social relations and crime prevention through early prevention, detection, prevention, suppression, disclosure and investigation of crimes in criminal proceedings, which includes preliminary (pretrial) investigation of crimes. The most complicated categories among them is carried out in the form of preliminary investigations by specially authorized investigative authorities. The efficiency and effectiveness of the performance of duties of these bodies depends on the scope of the powers and their legal status in the state mechanism, and, therefore, protection of the protection of human rights and civil liberties. The conclusions based on the study of the period of reasons of formation on the Territory of the Former Soviet Union of independent preliminary investigation bodies may help to improve the state penal policy and develop ways of implementation of state policies in the sphere of enforcement of the Criminal Procedure law.

Keywords: post-Soviet space, comparative research, independent preliminary investigating bodies, investigative committees, Armenia, Belarus, Pridnestrovian Moldavian Republic, Russian Federation.

DOI: 10.12737/24307

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ENGLISH-IRISH TYPE OF EUROPEAN PENAL SYSTEMS: ORGANIZATIONAL AND LEGAL FUNDAMENTALS, MEANS OF PRISONERS' TREATMENT AND CONDITIONS OF THEIR DETENTIONDETENTION  Pdf 16

P. V. TEPLYASHIN

associate professor of the Siberian Law Institute of the Ministry of Internal Affairs of the Russian Federation, candidate of legal sciences, associate professor
20, Rokossovsky st., Krasnoyarsk, Russia, 660131
E-mail: pavlushat@mail.ru

The scientific basis of the classification and typology of the European penitentiary systems are presented. The method of comparative jurisprudence and the system analysis of the European penitentiary reality are used in this article. The methodological substantiation of the existence of a group of European states with their typical features of penitentiary practice is given. The author states the up-to-date characteristic of the Anglo-Irish type characterized by peculiarities caused, first of all, by its scope of the legal system of Common Law and the decline of the settled liberal approaches to a crime and penal pragmatism. The main characteristics of the type under consideration are joint jurisdiction of penal authorities, considerable specific proportion of prisons among correctional institutions, essential development of the elements of progressive penal correctional system, diverse and active usage of rehabilitative means and individual rehabilitative programs for prisoners as well as measures of prisoners’ re-socialization and relatively wide usage of the institution of public private partnership in the penal sphere. The attention is focused on the fact that in the context of active maintaining the progressive standards of treatment of convicted persons in prisons of the Benelux Union, some violations of the convicted persons’ rights are noted in the reports of the representatives of the CPT who visited Ireland, England and Wales, Northern Ireland and Scotland. The author draws a conclusion that the analysis of Anglo-Irish penitentiary type in the context of the controversial reform of the national penal system causes the natural research interest to the further typological comparative and legal study of European penitentiary chart.

Keywords: European penology, prisoner, execution of criminal punishment, legal system, keeping regime, resocialization, type of the penitentiary system, United Kingdom, Scottish Prison Service, The Prison Rules, penal system, private prison.

DOI: 10.12737/24308

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COMPARATIVE LEGAL ANALYSIS OF LEGISLATIVE REGULATION OF CRIMINAL LIABILITY FOR BANDITRY IN CONTINENTAL AND ANGLO-SAXON LEGAL FAMILY  Pdf 16

A. V. SALNIKOV

postgraduate Kutafin Moscow State Law University
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123995
E-mail: artkem42@gmail.com

The article is devoted to comparative legal analysis of legislative regulation of criminal liability for banditry in various legal families. On the basis of modern foreign criminal legislation the author analyzes the features of the institutions of inchoate offences and complicity, as well as the norms establishing liability for the creation and participation in the armed criminal associations. The analysis of the sanctions of articles which provide liability for creation and participation in criminal associations. The author concludes that the existence of the preliminary crime involving liability for creating a variety of organized criminal associations, in some countries is stipulated by acts of preparation. The greatest similarity of criminal policy in the sphere of liability of the regulation for the establishment of organized criminal associations is noticeable between the USA and Russia. Based on the analysis the author proposes to exclude the corpus delicti banditry from the Criminal Code, which allows to solve the problem of differentiation of criminal liability just as the established liability for acts preparation will not allow criminals to evade liability.

Keywords: banditism, gang, an organized criminal group, complicity, stage a crime, the criminal law of foreign countries, the criminal policy.

DOI: 10.12737/24309

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COMPARATIVE ANALYSIS OF LEGAL REGULATION OF LABOUR RELATIONS IN RUSSIA, FRANCE, THE USA AND THE UNITED KINGDOM  Pdf 16

I. A. FILIPOVA

associate professor of the civil law and procedure chair of the Law Faculty of the Lobachevsky State University of Nizhny Novgorod, candidate of legal sciences, associate professor
23, Gagarin ave., Nizhny Novgorod, Russia, 603950
E-mail: irinafilipova@yandex.ru

Two basic models of legal regulation of labour relations exists in the world practice. Each of them has its advantages and disadvantages. The European model is taken as the basis for legal regulation of labour relations in the Russian Federation. The same model is used in France. The USA and the United Kingdom created Common law system of legal regulation of labour relations. Common law and Continental European systems were adopted by most countries, however in some countries such as China and Latin America countries both models are used combining. Labour laws of the countries using the same model have some similarities. Thus the labour laws of France and the labour laws of Russia have a strong social orientation; they include many of the same rules. However employment law in the states of Common law system is so flexible that it allows more freedom to build employment relationships. It contributes to the development of the labour market and to high achievements in the country’s economic development.

Keywords: labour relations, employment contract, employer, employee, terms of the employment contract.

DOI: 10.12737/24310

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FEATURES OF LEGAL REGULATION OF THE RIGHT TO HEALTH IN INTERNATIONAL AND NATIONAL LEGAL INSTRUMENTS  Pdf 16

A. V. POPOVA

professor of the Financial University under the Government of the Russian Federation, doctor of legal sciences, candidate of philosophical sciences, associate professor
49, Leningradsky ave., Moscow, Russia, 125993
E-mail: anna0710@yandex.ru

Health is the main value for any person so its defense appears to be the main task of a modern legal and social state. However international and regional instruments that contain the concept of health fasten different wordings, namely: “health”, “health of the nation”, “public health” which having different meaning. Moreover, legal acts and scientific literature include similar in sound but not in the legal sense constructions such as “protection of health”, “health”, “ensuring the basic preconditions for health” which trouble determination of the content of the right to health. The author on the basis of a comparative legal analysis of legal regulation of the legal categories of “right to health”, as contained in international instruments and Russian legislation, concludes that the realization of the right to health is connected with various activities aimed at ensuring individual and community health. Among these events, the world health organization includes assistance to mothers and children, prevention and control of endemic diseases, major infectious diseases; professional health care is based on the use of high technologies and promotion of healthy lifestyle, creation of healthy environment adequate to the modern realities of working conditions, improved nutrition and sanitary conditions, accommodation for vulnerable in social terms, individuals located on the territory of the state. The author advocates the position that the right to health at the same time is interpreted as a collective right (the addressee of a package of measures for the protection of health is not the individual citizen, and the population of the state) and as an individual right, to which corresponds the duty of the state to take measures to ensure against its citizens and persons within its territory.

Keywords: right to health, right to health, collective rights, individual rights, welfare state, World Health Organization.

DOI: 10.12737/24312

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